Draft of the coup distorts theory guided by Lewandowski – 04/05/2024 – Power

The draft state of siege decree found by the Federal Police with Lieutenant Colonel Mauro Cid, former aide-de-camp to Jair Bolsonaro (PL), cites five times a concept detailed in a thesis defended at the USP Law School more than two decades: the “principle of institutional morality”.

Author of the work, constitutional law professor Hamilton Rangel Junior says he sees the mention of his object of study as an irony of fate precisely in the context of investigations into the Bolsonarism coup plot.

Reason: the supervisor of the work was Professor Ricardo Lewandowski, now Minister of Justice under President Lula (PT).

Lewandowski’s guidance was mainly an endorsement of the work, says Rangel Junior, now a professor at Uninove and active in arbitration cases.

According to him, his original doctoral advisor, from the administrative law department, became uncomfortable continuing in her post as the work moved closer to constitutional theory.

He then decided to look for Lewandowski, who read the text and accepted the guidance of the thesis, approved by the panel in 2000 with the title “Principle of institutional morality: concept, applicability and control in the 1988 Constitution”.

“The minister was very generous in accepting the guidance, and it is an honor to have had his approval”, says Rangel Junior.

The work later became a book, “Princípio da Moralidade Institucional” (ed. Juarez de Oliveira, 2001), now out of print.

The draft found with Cid does not mention any bibliographical reference. But Rangel Junior’s thesis is the oldest to mention the principle of institutional morality and also the most cited, with 16 references, according to Google Scholar.

When the draft was made public, the professor said he suspected that whoever wrote it had read his work. “He is one of the few who tackle the issue with this focus and precision.”

The reunion with the concept, however, was a disappointment, according to him. “I have never seen such a blatant distortion of what we study, and to justify totally unreasonable ideologies.”

The state of siege decree was found by the Federal Police on Cid’s cell phone and, later, in the room used by Bolsonaro at the PL headquarters.

Lawyer Paulo Amador da Cunha Bueno, who defends the former president, states that it is a copy sent by him so that his client would be familiar with the material seized from the former aide-de-camp.

The text detailed a possibility of carrying out a coup “within the four lines” of the Constitution — a mantra repeated by Bolsonaro in crises against the Judiciary.

After listing a series of criticisms of the STF (Supreme Federal Court) and mentioning the principle of institutional morality, it provided for the declaration of a state of siege and a Law and Order Guarantee Operation.

The state of siege increases the power of the President of the Republic, who is now able to suspend fundamental rights such as freedom of assembly.

But, according to the Constitution, it needs authorization from Congress and can only be used in the case of war or extreme instability not resolved with the state of defense.

None of the hypotheses would apply to Bolsonaro’s defeat at the polls in 2022, and this is just one of the serious mistakes in the draft, says Rangel Júnior.

Among the most evident errors, he says, is that of the very concept of the principle of institutional morality, which he defined in his work as a constitutional principle arising from three others: that of state subsidiarity, private autonomy and individual autonomy.

In current terms, according to him, the principle of institutional morality says that it is prohibited by the Constitution for individual interests to conflict with those of private groups to which the individual belongs (such as a company or a party, for example) and with those of the entire society —private or individual interest could not, therefore, override the public interest.

The draft state of siege decree, in turn, says that the principle of institutional morality “does not allow unjust laws and/or decisions to be legitimized by authoritarian acts and removed from the constitutional framework.”

As arguments, he cites the fact that Alexandre de Moraes presides over the TSE (Superior Electoral Court) even with a close relationship with the then candidate for vice president on Lula’s ticket Geraldo Alckmin; in addition to court decisions such as the rejection of a complaint — full of weaknesses — about irregularities in the insertion of electoral propaganda on the radio.

Using the justification of institutional morality with the aim of reversing the results of the polls is contradictory, says Rangel Júnior.

“They are using the private interest of a certain ideology to conflict with the established constitutional order, that is, with the public interest”, he states.

He also cites other errors, such as the association of Thomas Aquinas (1225-1274) with the Enlightenment, which appears five centuries later.

He also criticizes the mention of Aristotle and says that they impute to the German jurist Otto Bachof (1914-2006) something that he did not say, that is, that constitutional norms could be considered unconstitutional in the face of a right “above the Constitution”, as the text says found on Cid’s cell phone.

“What Bachof considers is the possibility of constitutional principles conflicting with each other”, states Rangel Junior.

“The only point at which [o texto de decreto de sítio] What is right is that the principle of institutional morality serves to punish any situation of conflict of interest that is not very clear in the legislation”, he says.

Rangel Junior claims to not know anyone from the so-called “legal core” of the coup plot under Bolsonaro, such as lawyer Amauri Feres Saad.

According to the PF, Saad presented to the then president, together with advisor Filipe Martins, a decree that provided for the arrest of several authorities, including Moraes, STF minister Gilmar Mendes and the president of the Senate, Rodrigo Pacheco (PSD-MG) .

Rangel Junior says that, as a lawyer, Saad should be ashamed to have his name associated with the draft. “They use the principle of institutional morality to practice the purest immorality,” he says.